1996-075d \NPDOCS\ORD~ABNER ORD
ORDIN CE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A CONTRACT
PROVIDING FOR THE EXCHANGE OF CERTAIN REAL ESTATE ON THE EAST SIDE
OF MAYHILL ROAD OWNED BY THE CITY OF DENTON; FOR PROPERTY NEXT TO
THE CITY OF DENTON LANDFILL OWNED BY ABNER, INC , AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the city of Denton, in accordance with the
requirements of TEX. LOC. GOV'T CODE ANN CHAPTER 272 001 (VERNON
1988), has advertised for the exchange of a certain tract of real
property located on the east side of Mayhlll Road and described as
10 acres of land 3,000 ft. south of FM 426 (McKlnney Street)
WHEREAS, the City Manager having recommended to the City
Council that the said exchange of land be approved; and
WHEREAS, in accordance with Sec. 12.04 of the City Chapter, the
Council hereby finds that the property described above ~s not
essential to continued effectlve utility service; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the city Council of the City of Denton, Texas
approves the contract between the City of Denton and Abner Inc.,1
providing for the exchange of real property described in the
contract, a copy of which is attached hereto as Exhibit "A" and
incorporated by reference herein.
SECTION II. The city Council hereby authorized the City
Manager to execute any and all documents necessary to consummate
the exchange of real property in accordance with the contract, and
the expenditure of funds ~ncldental to said exchange
SECTION III. That th~s ordinance shall become effectlve
immediately upon its passage and approval.
PASSED AND APPROVED this the~h~ day of ~ , 1996
ATTEST: BOB ~ASTLEBERRY, MAY~ ~
JENNIFER WALTERS, CITY SECRETARY
HERBERT L. PROUTY, CITY ATTORNEY
EXCHANGE CONTRACT
STATE OF TEXAS
COUNTY OF DENTON
THIS EXCHANGE CONTRACT (hereinafter ,,Contract") is made as of
by and between ABNER, INC.
(hereinafter referred to as ,,Corporation") and CITY OF DENTON7
TEXAS, a home rule municipality, of Denton, Denton County, Texas,
(hereinafter referred to as "City"), upon the terms and conditions
set forth herein
EXCHANGE AGREEMENT
WHEREAS, Corporation is the owner of that certain tract of land
situated in Denton County, Texas, and being more particularly
descrIbed ~n Exhibit A ("Tract A") attached hereto and incorporated
herein for all purposes, and
WHEREAS, City owns that certain tract of land situated in
Denton County, Texas and being more particularly described in
Exhibit B ("Tract B") attached hereto and ~ncorporated herein for
all purposes, and
WHEREAS, Corporation w~shes to acquire Tract B and City wishes
to acqulre Tract A, and
WHEREAS, City is willing to convey Tract B upon the terms and
conditions contained here~n, and
WHEREAS, Corporation is willing and able to convey Tract A upon
the terms and conditions contained herein,
NOW, THEREFORE, for and in consideration of the mutual
agreements contained herein, Corporation and City hereby agree as
follows
1 ~xchanae Aareement
Subject to the terms and conditIons contained herein,
Corporation agrees to convey Tract A to City, and C~ty
agrees to convey Tract B to Corporation
2 No Creation of Additional Encumbrances by Affirmative
A Corporation agrees that neither Corporation or its
predecessors in title to Tract A will not, through affirma-
tive actions taken after the date hereof and before the
closing date create any additional encumbrance affecting
Tract A without the express prior written consent of City
C~ty agrees that City w~ll not withhold consent to a
proposed additional encumbrance affecting Tract A if such
proposed additional encumbrance has no mater~al, adverse
effect upon the value, development, or use of Tract A If
Corporation through affirmative actions taken after the
date hereof and before the closing date does create any
additional encumbrance affecting Tract A without the
express prior written consent of C~ty, Corporatlon shall be
required to remove any such additional encumbrance at
Corporation's sole cost and expense prior to or at the
Closing
B C~ty agrees that C~ty w~tl not through affirmative
actions taken after the date hereof and before the closing
date create any additional encumbrance affecting Tract B
without the express prior written consent of Corporation
Corporation agrees that Corporation will not withhold
consent to a proposed additional encumbrance affecting
Tract B if such proposed additional encumbrance has no
mater~al, adverse effect upon value, development, or use of
Tract B If City through affirmative actions taken after
the date hereof and before the closing date does create any
additional encumbrance affecting Tract B without the
express prior written consent of Corporation, C~ty shall be
required to remove any such add~tlonal encumbrance at
City's sole cost and expense prior to or at the t~me of
Closing Platting of Tract B for the purpose of allowing
a tower to be placed upon Tract B shall not be deemed an
encumbrance for purposes of this prov~slon
3
The closing shall be held at the office of
on or before
, or at such tlme, date, and place as City
and Corporation may mutually agree upon (which date ~s
herein referred to as the "closing date")
4 Delivery of Deeds, Easement Aareement and Possession
A At the Closing, Corporation shall (1) execute,
acknowledge and deliver to Clty a Special Warranty Deed
conveying Tract A to C~ty (the ,,Corporation Deed") and any
and all other documents necessary to convey tract A to
C~ty, (11) Subject to the provisions of Paragraph 10,
deliver possession of Tract A to City, and (111) supply
C~ty a Commitment ~dent~cal to those contained ~n the
Commitment issued
B At the Closing, C~ty shall (1) execute, acknowledge,
and deliver to Corporation a Special Warranty Deed
PAGE 2
conveying Tract B to Corporation (the "City Deed"), (Il)
deliver possession of Tract B to Corporation and (Ill) pay
Corporation $ 413~850.00 See paragraph 29 herein.
5 prooertv Tax Llabllltv
Corporation hereby Agrees that Corporation will pay all
1995 property taxes levied or assessed against Tract A
A Corporation will pay the filing fees for the City Deed,
and City will pay the filing fees for the Corporation Deed
B If Corporation desires to obtain a title insurance
policy covering Tract B, Corporation shall pay the premium
therefor If City wishes to obtain a title insurance
policy covering Tract A, City shall pay the premium
therefor If only one party desires such title insurance,
that party may select the title company If both parties
desire title insurance, then it is agreed that the title
Insurance company shall be
C If there are any closing costs not allocated to
Corporation or City herein, such closing costs shall be
paid by the party incurring same
7 Inspection of Property
A For a period of ten (10) days from the date hereof
corporation agrees to allow C~ty to enter upon Tract A for
the purpose of inspecting the same, and for the purpose of
conducting such environmental tests, feasibility studies,
and other tests or studies the C~ty deems advisable If
C~ty, in City's sole discretion, is not satisfied with such
Inspections, tests or studies, City may terminate th~s
Contract by giving written notice of termxnatlon to
Corporation w~thln twenty (20) days from the date hereof
In the event City terminates th~s Contract pursuant to this
paragraph 7, City agrees to restore Tract A substantially
to ~ts cond~tlon prior to C~ty's entry
B For a period of ten (10) days from the date hereof,
City agrees to allow Corporation to enter upon Tract B for
the purpose of inspecting the same If Corporation, in
Corporation's sole discretion, is not satisfied with such
inspections, Corporation may terminate this Contract by
giving wrltten notice of termination to C~ty within twenty
(20) days from the date hereof In the event Corporation
terminates th~s Contract pursuant to th~s paragraph 7,
Corporation agrees to restore Tract A substantially to Its
condition prior to Corporation's entry
PAGE 3
8. REPRESENTATIONS
he Co oration represents that it and 1ts officers do not
A. T rp ......... ~us wastes or materials
have any knowledge o= any =oxlc or ~
on or within Tract A nor does the corporation and any of 1ts
officers have any knowledge of toxic or hazardous wastes or
materials as same are defined by the Resource Conservation and
Recovery Act (RCRA), as amended,.~nd the Comprehensive
Environmental Response Compensa=Lon and Liability Act (CERCLA),
as amended on or within Tract A.
B. The city of Denton represents that the City and its
representatives do not have any knowledge of any toxic or
hazardous wastes or materials on or within Tract B nor ~oes the
it and its representatives have any knowledge any toxic or
? Y ........ ~--ials as same are defined by the Resource
a. nm.nd.d, and th.
comprehensive Environmental Response Compensation and Liability
Act (CERCLA), as amended on or withinTract B.
PAGE 4
!
A. Four (4) days prior to closing, City agrees to furnLsh
to Corporation, and if necessary, Corporation's Title
Company, written evidence of the authority of the party(s)
executLng thLs Contract on behalf of the City. City agrees
to furnish to Corporation, and if necessary, Corporation's
T~tle Company, at or prior to the Closing written evidence
of the authority of the party(s} executing the City Deed on
behalf of the City
B Four (4) days prior to closing, Corporation agrees to
furnLsh to C~ty, and if necessary, City's Title Company,
written evidence of the authority of the par~y(s) executing
=h~s Contract on behalf of Corporation. CorporatLon agrees
PAGE 5
to furnish to City, and if necessary, City's Title Company,
at or prior to the Closing written evidence of the authori-
ty of the party(s) executing the Corporation Deed on behalf
Corporation
10 Survival of Covenants
Any of the representations, warranties, covenants, and
agreements of the parties, as well as any rights and
benefits of the parties, pertaining to a period of time
following the closing of the transactions contemplated
hereby shall survive the closing and shall not be merged
therein
Corporation and City warrant and represent to each other
that no real estate brokers', agents', or finders' fees or
commissions are due arising in connection with the exchange
of Tract A for Tract B, from the execution of this Contract
or from the consummation of the transactions contemplated
herein, and each party hereto hereby agrees to indemnify
and hold the other party harmless from claims made by any
person for any such fees, commissions or like compensatIon
claiming to have dealt with the party so indemnifying the
other
If corporation breaches any of the agreements of corpora-
tlon contained in thls Contract and such breach is not
cured within fifteen (15) days after City has delivered
written notice thereof to Corporation, City at City's
election may either terminate this Contact, or seek all
other remedies set forth in this Contract or available at
law, in equity, or by statute, including specific perfor-
mance, provided, however, if Corporation ~s unable to
deliver title to Tract A free and clear of any encumbranc-
es, City's only remedy shall be termination of this
Contract unless the encumbrance in question is an encum-
brance created the date hereof and before the closing date,
by the affirmative actions of Corporation to which City did
not consent in writing, in which event City shall be
entitled to exercise all of the remedies set forth herein-
above
If City breaches any of the agreements of City contained in
this Contract and such breach is not cured within fifteen
(15) days after Corporation has delivered written notice
thereof to City, Corporation at Corporation's election may
either terminate this Contract, or seek all remed%es set
forth in this Contract or available at law, in equity or by
statute, including specific performance, provided, however,
PAGE 6
if Clty zs unable to deliver title to Tract B free and
clear of any encumbrances, Corporation's only remedy shall
be termmnatlon of this Contract unless the encumbrance mn
question is an encumbrance created after the date hereof by
the affmrmatmve actmons of Cmty to which Corporatmon dmd
not consent in wrmtmng, mn which event Corporatmon shall be
entmtled to exercise all of the remedies set forth heremn-
above
13 Attor 's Fe s
Should emther party to this Contract commence legal pro-
ceedmngs agamnst the other to enforce the terms and pro-
vmslons of thms Contract, the party losmng mn such legal
proceedings shall pay the attorney's fees and expenses of
the party prevamlmng mn such legal proceedings
Time is mmportant to both Corporation and Cmty in the
performance of thms Contract and they have agreed that
strict complmance ms requmred as to any date set forth
herein If the final date of any permod whmch ms set forth
mn any term or provision of this Contract falls upon a
Saturday, Sunday, or legal holmday under the laws of the
Unmted States or the State of Texas, then, and mn such
event, the tmme of such permod shall be extended to the
next day whmch ms not a Saturday, Sunday, or legal holmday
15 Notices
Any notmce requmred or desmred to be given to either party
hereto shall be deemed to be delmvered (1) on the date of
delivery, if hand delivered, (11) one (1) day after
sending, if sent by overnight courier, or (mlm) mf sent by
maml, the day the same ms posted in a U S mall receptacle,
postage prepaid, certlfmed maml, return recempt requested,
to the address of the applmcable party set out above such
party's signature herelnbelow Either party hereto may
change such party's address for notmce, but untml written
notmce of such change of address is actually recemved by
the other party, the last address of such party desmgnated
for notmce shall remamn such party's address for notice
If any term or provmslon of thms Contract ms held to be
mllegal, mnvalld, or unenforceable, the legalmty, valmdmty,
and enforceabmllty of the remamnmng ter~s and provlsmons of
thms Contract shall not be affected thereby, and mn lmeu of
each such illegal, invalid, or unenforceable term or pro-
vmsmon there shall be added automatmcally to thms Contract
a legal, valmd, and enforceable term or provmslon as
PAGE 7
similar as possible to the term or provision declared
~llegal, ~nvalld, or enforceable
17 W_~
E~ther Purchaser or C~ty shall have the r~ght to waive any
requirement contained ~n th~s Contract, which ~s ~ntended
for the waiving party's benefit, but, except as otherwise
specifically provided herein, such waiver shall be effect-
lye only ~f ~n writing executed by the party for whose
benefit such requirement ~s intended
18 C~mulat~ve R~ahts and Remedies
Except as specifically limited here~n, no r~ght or remedy
set forth xn th~s Contract is intended to be exclusive of
any other right or remedy set forth ~n th~s Contract or by
law provided, but each shall be cumulative and ~n addition
to every other r~ght or remedy set forth ~n th~s Contract
or now or hereafter ex~st~ng at law or ~n equity or by
statue
The captions used in connectxon w~th the articles and
sections of th~s Contract are for convenience only and
shall not be deemed to expand or llmlt the meaning of the
language of th~s Contract
20 ~
Words of any gender used in thls Contract shall be held and
construed to ~nclude any other gender, and words in the
s~ngular shall be held to lnclude the plural, unless the
context otherwxse requires
All exhibits, attachments, annexed lnstruments, and addenda
referred to here~n shall be consldered a part hereof for
all purposes with the same force and effect as if copied
verbatim wherever reference ~s made to same
22 No Representations or Warranties
Except for the general warranty of title contalned in the
C~ty Deed and representations in paragraph e~ght (8) above,
Corporation hereby acknowledges that City has not made any
representations or warranties to Corporation w~th respect
to the sultablllty of Tract B for any ~ntended use, the
condition of Tract B (including soil and sub-so~l condi-
tions), the appreclatlon or lncome potential of Tract B,
and accesstoTra~tB-
PAGE 8
ThLs Contract embodies the entire agreement between
Corporation and C~ty with respect to the subject
hereof and supersedes all prior agreements whether wrx~ten
or oral.
Except as otherwise specifically provided .herei.n, th~s
by an agreement in writing ex~cutea my both corpora~-
City.
Except as otherwise provided herein, this Contract shall be
b=nding upon and inure to the benefit of Corporation and
City and their respective successors and assigns
26. C~Y WARRANTS
C~ vmn~nU ~at Ua~ B ~s zoned as such ~ ~!iow ~e corpomUon ~ ere~ 4~6
To u =
27 PLATIING TRACT B.
The C~ty a~ees to survey and plat Uact B and record tho plat m the Real l~oparty
Records prior to closing.
28 INSPECTION OP TITLE.
Both pan~y shall have a period of tea (10) days from the rec~pt of the t~tle
comnutmant, copies of restrictions & easem~ats, and cop~es of all Schedule
excepUons (on title commitment) to review md document If ather party ~s
saUsfied w~th saut excepUons, ~uther party may t~.mmate tlus contract by ~v~u noUce
to teunmate ~thm the ten (10) day period
29. ESCROW AGBNT
The momes payable to the corporaUon under prows~on 4 b -, of the contract shall
be pa~d to the CorporaUun's escrow a~ent as des~nated by the CorporaUon
30
Thc C~ty aF, rces to lease Tract B to the CorporaUon from the date of the exchange
unUl December 31, 1~98 at the rite of $~0.00 per y~ar
PAGE 9
EXECUTED by Corporation and City on the date first referenced
above
CORPORATION cITY
cITY OF DENTON
Address 215 E McK~nney
Addmess Denton, Texas 76201
BY BY~R
PRESIDENT
ATTEST'
JENNIFER WALTERS, CI7 SECRETARY
PAGE 10
Being a tract of land situated in the G Walker Su~'~,ey Abstract No. 1330 Denton
County, Texas end being e part of the tract desoribed in the Deed from Cary Neneock to
Roger ¢ Sullivan and Robert H Heiser recorded in Volume 970. Page 88 of the Deed
Records, Denton County, Texas; the subject tract being more particularly described as
follows
BEGINNINC for the Southwest corner of the tract being described herein, at an 1/2 inch
iron rod set in Edwards Road in the occupied South line of the Sullivan and Neleer
tract South SS degrees 29 minutes 00 seconds East a distance of 707.75 feet fro~ the
apparent Southwest Corner thereof and also being in North line of Allan Est&tee Mobil~
Home Perk es shown by the Plat thereof recorded in Cabinet C, Page ~8S of the Plat
Records of Denton County, Texas,
THENCE North 01 degree8 31 minutes 00 seconds East passing at 15.0 feet a 1/2 inch
iron rod set under a gate in · fence along the Norr. h side of ~dverde Road and
continuin~, in ell, a total distance of 660.00 feat to a ~/R inch iron rod est for the
Northwest corner of the herein described tractl
THENCE South 88 degrees 29 minutes O0 seconds East parallel with the South line of the
Sullivan and Neiser tract a distance of 660.00 feet to a 112 Inch Iron rod set for the
Northeast corner of the herein described tract;
THENCE South O1 degrees ~l minutes O0 seconds West a distance of 660.00 feet to a 1/2
inch Iron rod set for the Southeast corner of the herein described tract in the South
line of the Sullivan and Neleer tract in the remains of an old fence line about 12
feet South of a standing fencel
THENCE North 88 de,tees 29 minutes O0 seconds West with t~e South line of the Sullivan
and Heiser tract along ~dwards ~oad part of the way a distance of 660.00 feet to ~he
PLACE OF BEGINNING and enclosing 10 O0 acres of land.
EXHIBIT
(10 Acre Tract)
ALL that certaln lot, tract or parcel of land lying and being situated in the
City and County of Denton, State of Texas, in the Gideon Walker Survey,
Abstract 1330 and being part of a 84.8193 acre tract conveyed from D.J.
Anderson to ~he city of Denton by deed recorded in Volume 2431, Page 843 of
the Real Property Records of Denton County, Texas and being more particularly
described as follows:
COMMENCING at the most northerly nor.thwes.t, corner~ of said 84. 8193 acre tract,
said point lying in Mayhill Road aha on ~ne wes= line of said Gideon walker
Survey ~
THENCE South 01' 31' 31" West along the west line of said survey a distance
of 131.96 feet to a point for corner~
7' 52' 38" East a distance of 132.74 feet to the POINT OF
THENCE South 8 .........~--=-- ~ ~ curve to the right whose
GINNING, said point also ~eLng =ne Deg~nn~.~. ~.~ - _ ..... ~__~ ~,~ has
BraEdius point bears South 02' 07' 22" West a als=ance
a central angle of 35~ 23' 44#~
ENCE .outh.a.t.rly along .aid =c d .tanc.
in of a curv,
poLn or corner, said point being ~ne Deginn_ .g
raditusfpoint bears North 37' 31~ 06# East a cllsl~ance
a central angle of 35' 30'
THENCE southeasterly along said curve an arc distance of 209.05 feet to a
poLnt for corner~
THENCE South 87' 59' 21" East a distance of 284.43 feet to a point for
corner;
THENCE South a distance of 195.01 feet to a point for corner}
THENCE South 20' 00' 00" West a cllstance of 528.61 feet to a point for
corner ~
THENCE North 87' 37' 00# West a distance of SO0 feet to a point for corner;
THENCE North 00' 38' 22" East a distance of 15.26 feet to a point for corner;
THENCE North 79' 04' 24" West a distance of 1.18 feet to a point for corner;
THENCE Nortlt 04~ 00' 52" East a cistance of 384.83 feet to a point for
corner }
THENCE South 83' 50' 05" Eaet a distance of 22.08 feet to a point for corner;
THENCE North 04' 13' 40" East a distance of 45 feet to a point~ for corner;
THENCE North 88' 39' 38" West a distance of 30.52 to a point for corner;
THENCE North 02' 37' 32" East a distance of 367.74 feet to the POINT OF
BEGINNING and contaLning 10 acres of land.
DATE APRIL 2, 1996
CITY COUNCIL REP_ORT
TO Mayor and Members of the City Council
FROM Rick Svehla, Acting C~ty Manager
SUBJECT BID # 1872 - EXCHANGE OF LAND
RECOMMENDATION. We recommend this b~d be awarded to the sole b~dder, Abner Inc, as
proposed per the attached Terms of Land Exchange
SUMMARY. Tlus exchange of property and other consideration ~s reqmred for the continued
expansion of the City of Denton Landfill The 10 acres acqmred by the C~ty from Abner currently
contmns a large microwave commumcat~ons tower Abner Inc will continue to utlhze th~s tower
antenna until December of 1998 at which t~me the tower use will be discontinued
Acqms~tlon of th~s land is cntmal to the current designs of the landfill expansmn program
Planmng and Zomng Commission recommends approval
BACKGROUND: Tabulation Sheet, Terms of Land Exchange, Site Map
PROGRAMS: DEPART~GROiJI'S AFFECTED: C~ty of Denton Landfill
Development, Denton Mumc~pal Utility
F~S~AI.~31~_AI21~ Funds for this land transaction wall come from 1995-1996 Bond Funds
Account #632-024-LAND-9001
submitted
R~ck Svehla
Acting C~ty Manager
Name Tom D Shaw, C P M
Title Purchasing Agent
723 AGENDA
TOWER SITE ACQUISITION
PROPERTY EXCHANGE
o 10 acre property exchange
o Acreage exchange with Abner, Inc (Tower Owner)
o New 10 acre site on Wastewater Treatment Property
coNI~moNs OF ~ EXCItANGE
o Tower price $413,850
o Purchase price prod to Abner, Inc's escrow agent
o Abner agrees to remove of all customers by December 31, 1998
o City agrees to lease emstmg tower location for $50 00/year
o City warrants prope~o] zoned for tower use
o City provxdes ut~hUes (electric)
o Responsibility for environmental damages deternune by common law
o City responsible to plat property prior to clomng (in process)
DENTEX TITLE COMPANY
300 N. ELM, STE. 101
DENTON, TEXAS 76201
817-566-0282
FAX 817-566-6445
City of Denton
221 N Elm Street
Denton, TX 76201
RE G F # 96-1332S
POLICY % 428776
PROPERTY 10 0 acres in Gideon Walker Survey, Abstract 1330
Denton County
Dear Madam or Sir
Enclosed herewith please f~nd your Owner Policy of Title Insurance
on the above referenced transaction
Your original Warranty Deed was filed w~th the County Clerk of
Denton County, Texas It w~ll be returned to you by the County
Clerk
If you require anything further, please do not hesitate to call
Thank you for selecting Dentex T~tle Company to assist you w~th
your title ~nsurance needs It has been our pleasure to do
bus,ness w~th you
Sincerely,
DENTEX TITLE COMPANY
R-03 Property Cat& CZ
1000= 3830.00 County Code= 121
O~NER POLICY OF TITLE INSURANCE
SCHEDULE A
GF No.. 96-13328
Policy No.= 428776 Issued vrlth Policy No.
Amount of Insurance= $533~850.00
Premiu~ $3s830.00
Date of Policy= ~ay 17~ 1996 at 3=40 P.~
I. Name of Insuredl
CITY OF DENTON~ TEXAS
2. The estate or interest in the land that is covered by this policy is~ Fee Simple
3. Title to the estate or interest in the land is insured as vested i~
CITY OF DENTONt TEXAS
4. The land referred to in this policy is described as follows=
BEING ALL THAT CERTAIN lC. 0 ACKEt HORE OR LESSs TRACT OF LAND IN THE GIDEON WALKER
SURVEL ABSTRACT NUI~ER 1330~ DENTON COUNTL TEXAS AND BEING ~OKE PARTICULARLY
DESCRIBED IN EXHIBIT "E~ ATTACHED HERETO AND MADE A PART HEREOF.
Dentex Title Company
Alamo Title Insurance of Texas A~thori~ed Countersignature
FORM T-l= Owner Policy-Schedule A Effective January l, 1993
EXIIIIIIT'A
, ~cp~dl of Denton County, Texall
/
OWNER POLICY OF TITLE INSURANCE
SCHEDULE B
G F. No.: 96-13325
Policy No : 428776
EXCEPTIONS PROM COVERAGE
This Policy does not insure against loss or damage (and the Company will not pay costs,
attorneys' fees or expenses) that arise by reason of the terms and conditions of the
leases or easements insured, if any, shown in Schedule A and the followin8 matters:
1. The following restrictive covenants of record intemized below (the Company must
either insert specific recording data or delete this exception):
This exception is hereby deleted in its entirety.
2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any
encroachments or protrusions, or any overlappin~ of improvements.
3. Homestead or community property or survivorship rights~ if any, of any spouse of any
insured.
4. Any titles or rights asserted by anyone, including, but not limited to, persons, the
public, corporations, §overnments or other entities,
a. to tidelands, or lands comprisin$ the shores or beds of navigable or perennial
rivers and streams, lakes, bays, gulfs or oceans, or
b. to lands beyond the line of the harbor or bulkhead lines aa established or
changed by any government, or
c. to filled-in lands, or artificial islands, or
d. to statutory water rights, including riparian rights, or
e. to the area extending from the line of mean low tide to the line of
vegetatio~ or the right of access to thet area or easement alon~ and across
5. Standby fees, taxes and assessments by any taxin~ authority for the year 1996 and
subsequent years, end subsequent taxes and assessments by any taxin~ authority for
prior years due to change in land usage or ownership.
6. The followin$ matters and all terms of the documents creating or offerin$ evidence of
the matters (We must insert matters or delete this exception)'
a Any visible and apparent easements over and across said property, the
existence of which does not appear of record
b Any part or portion of the herein described property, lying within the
boundaries of a public or private road or right of way.
c. Rights of parties in possession
d. Any outstandin~ oil, Eas and other mineral interest owned by others of record
in the office of the County Clerk of Denton County, Texas, includi~, but not
limited to the following:
RESERVATION IN DEED FROM ROGER C. SULLIVAN, ET AL TO ABNER, INC FILED JAN. 15,
1993 AND RECORDED IN VOLUME 3427, PAGE 492, REAL PROPERTY RECORDS, DENTON COUNT~
TEXAS.
Alamo Title Insurance of Texas
Form T-i' Owner Policy-Schedule B Effective January 1, 1993
G.F. No · 96-1332S CONTINUATION OF SCHEDULE B
Policy No.~ 4,28776
· Title to said mineral leases/reservatio~s have not been researched subsequent to
date of document.
e. Easements retained by ROGER C. SULLIVAN, ET AL in Deed to ABNER, INC. filed
JAN. 15~ 1993 and recorded in Volume 3427~ Paso 492~ REAL PROPERTY Records~ Denton
Coun=y, Texas.
Alamo Title Insurance of Texas
Form T-1. Owner Policy-Schedule B Effective January 1, 1993
OWNER POLICY OF TITLE INSURANCE
Issued by
42 776
Alamo Title Insurance
of Texas
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE
CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, ALAMO TITLE INSURANCE OF
TEXAS, a Texas corporation, here~n called the Company, ~nsures, as of Date of Pohcy shown ~n Schedule A,
agmnst loss or damage, not exceeding the Amount of Insurance stated ~n Schedule A, sustained or ~ncurred by
the ~nsured by reason of
T~tle to the estate or ~nterost described m Schedule A being vested other than as stated there~n,
2 Any defect in or hen or encumbrance on the t~tle,
3 Any s~atutory or constitutional mechanm's, contractor's, or matenalman's hen for labor or matenal having
~ts mcept~on on or before Date of Pohcy,
4 Lack of a nght of access to and from the land,
5 Lack of good and ~ndefeas~ble btle
The company also w~ll pay the costs, attorneys' fees and expenses ~ncurred ~n defense of the t~tle, as
~nsured, but only to the extent prowded ~n the Conditions and Stipulations
ALAMO TITLE INSURANCE OF TEXA~ ?
President
FORM T 1 Owner Policy of Title insurance Effective January 1 1993
CONOtTIONB AND STIPULATtONS Continued
4 D£FENEE AND PROSECUTION OF ACTIONS DUTY OF INSURED CLAIMANT TO COOPERATE
(a) Upon written raguest by the ~nsured and subject to the edt~ons contained ~n Section 6 of these Cood~gons and Stipulations the COrTlpany at its own COSt end without
unreasonable delay shell prowde for the defense of an ~nsured in litigation ~n which any third party asserts a claim adverse to the gge or interest as insured but only as to
those stated causes of acbon alleging a detect hen c encumbrance or o~her matter insured against by th~s policy The Company shall have the nght to select counsel of its
choice (sub~ect to the nght of the insured to object lot reasonable cause) to represent the msureb as te those stated causes ot acgon and shall not be liable for anq Wll~ r~ot
pay the fees of any other counsel The Company w~ll nor pay any fees costs or expenses recurred by the insured ~n the defense cf those causes of action that allege
matters not insured against by th~s
(b) The Compan!, shall have the right a
desirable to establish the htle to toe estate or interest as insured or to preven~ or reduce loss or damage to the ~nsured The Company may take any appropnate acbon
under the terms of th~s policy whether or not ~t shell be liable hereunder and shall not thereby concede liability or waive ar~y provision of this policy It the Company shall
exercise its rights under this paragraph ~t shall do so d~l~gently
(c) Whenever the Company shall have brought an achon or ~nterposed a defense as required or permitted by the provisions of this pohcy the Company may pursue any
litigation to final determine ion by a court of cor~ patent j unsd~cgon and expressly reserves the r~ght m ~ts sole dlscrehon to appeal from any adverse judgment or order
(d) I'~ all cases where th~s policy perm~t~ o~ requires the Company to prosecute or prowde for the defense of any action or proceeding the insured shall secure to the
Company the nght to so prosecute or prowde defense ~n the action or prcceed~ng and all appeals thereto and permit ~he Company to use at ~ts option the name of the
msureb for this purpose Whenever requested by the Company the ~nsured at the Companys expense shall give the Company all reasonable aid (i) ~n any acbon or
proceeding securing evidence obtaining w~tnesses prosecuhng or defeed~ng the achon or proceeding or affecting settlement and (~) ~n any other lawful act that in the
opinion of the Company may be necessary er desirable to establish the title to the estate or inlerest as insured If the Company is prejudiced by the failure of the insured to
furnish the required cooperation the Companys Obllgatlon~ to the insured under the policy shall telm~nate ~ncludlng any liability or obllgahon to defend prosecute or
conhnue any I~hgahon with regard to the matter or matters requiring such cooperaedn
5 PROOF OF LOSS OR DAMAGE
In addition ID and after the notices required under Section 3 of these Conditions and SgpuIaedns have been provided the Company a proof of loss or damage signed and sworn
to by the insured claimant shall be furnished fo the Company within 91 days after the insured claimant shall ascertain the facts giving rise Io the loss or damage The proof of
[DSS or damage shall describe the defect in or I~en or encumbrance on the gila or other matter ~nsured against by this policy that constitutes the basis of loss or damage and
shall state to the e~rtent possible the bas~s of calculaedg the amount of the loss or damage If the Company ~s pretud~ced by the failure of the ~nsured claimant to prowod the
requaed proof of loss or damage the Company s obl~gagons to the insured under the policy shall terminate including any I~ab~l~y or obllgahon to delend prosecute or conhnue
any Iltlgagon with regard to the metier or matters requ~nng such proof of loss or damage
In addition the ~nsured claimant may re,~sonably be requ~ied to submit to exammabon under oath by any authonzed representative of the Company and shall produce for
examlnahon inspection and copying af sdch reasonable times and places as may be des~gnaIed by any authorized representahve of the Company all records books ledgers
checks correspondence and memoranda whether beanng a date before or after Date of Pohcy which reasonably pertain ~o the loss or damage Further if requested by any
authorized represer~taeve of the Company the insured claimant shall grant its permission ~n writing for any authonzed representative of the Company to examine ~nspect and
copy all records books ledgers checks correspondence and memoranda in the custody or control of a third party which reasonably pertain Io the loss or damage All
~nformatlon deSk§hated as cool,bengal by Ibc ~osured claimant provided to the Company pursuanI to this Section shall not be disclosed ~o others unless in the reasonable
judgment of the Company it ~s necessary In the administration of the claim Failure of the insured cIa4mant to subm~l for examlnahon under oath produce other reasonably
requested informahon or grant barrel,sion to secure reasonably necessary information from third part,es as required in this paragraph shall terminate any liability of the
Company under th~s policy as to that claim
6 OPTIONS TO PAY~OR OTHERWISE SETTLE CLAIMS TERMINATION OF LIABILITY
In case of a claim under th~s policy the Company shall have the following aedlhonal options
TO Pay or Tender Payment of the Amount of Insurance
(T~ pay or tender paymen~ of the amounl of insurance under this policy Iogether with any costs attorneys fees and expenses recurred by the insured claimant which were
authorized by Ihe Company up to the time of payment or tender ol payment and which the Company ~s obligated to pay
Upon the exercise by the Company of this ophon all I~ab~l~ty and obligations to the insured under Ibis policy other 1hen fo make the payment required shall terminate
including any I~ablllty or obligation to defend prosecute or congnue any Idlgatlon and the poll~'y shall be surrendered ~o the Company for cancellation
(b) To Pay er Otherwise Settle With Parties Other than the Insured or With the Insured Claimant
(i) to pay or otherwise sadie with other parties for or in the name of an Ir'sured claimant any claim ~nsured against under th*s policy together with any costs edorneys
fees and expenses incurred by the insured cia]man~ which were authorized by the Company up to the hms of payment and wh*ch the Cor~pany is obligated to pay or
(1~) to pay or otherwise settle with the insured claimant the loss or damage prowded lot under th~s policy together w~th any costs attorneys fees and expenses ~ncurred
by the ~neured claimant which were authonzed by the Company up to the gms of payment and which the Company ~s obligated to pay
Upon the exercise by the Company ol e~her of the options prowded Ior in paraglaphs (b)(i) or (H) the Company s obhgaedns to the insured under this policy for the claimed loss
or damage other than the payments required to he made shall terminate including any liability or obllgahon to defend prosecute or continue any llhgahon
7 DETERMINATION EXTENT OF LIABILITY AND COINSURANCE
This policy IS a contract of indemnity against actual monetary loss or damage sustained or ~ncurred by the insured cla~mam who has suffered loss or damage by reason of
matters insured against by this policy and only to the ex[eot herein described
(a) The liability of the Company under th~s policy shall not oxceed the least of
(I) the Amount ol Insurance stated m Schedule A
(11) the difference between the value of the ~nsured estate or ~nterest a¢ insured and the value of the insured estate or interest SUblect to the defect lien or encumbrance
insured against by this policy at the date the insured claimant is reau~red to furnish to Company a proof ol loss or damage in accordance with Section 5 of these
CondlhOnS arid Stipulations
(b) In the event the Amount of Insurance stated in Schedule A at Ihs Date of Policy IS less than 80 percent of ~he value of the insured estate or interest or (he ful~ COl~SlderatlOfl
pa~d for the land whichever is tess or ~f subsequent ~o Ihs Date of Policy an ~mprovement is erected on the land which ~ncreases the value of the ~nsured estate or interest
by as least 20 percent over the ,~mount ol Insurance stated ~n Schedule A then this Policy is subject to ~he following
(I) where nO subsequent ~mprovement has been made as to any parbal loss the Company shall only pay the loss pro rata in the proportion that the amount of insurance
at Date Of Policy beam to the total value of the insured estate or mteres[ at Date of Policy or
(1~) wl~ere a subsequent ~mprovement ha~ been made as ID any peri,al loss the Company shall only pay the loss pro rata ~n the proporhon that 120 percent of the
Amount of Insurance stated m Scheaule A bears to the s J m of the Amount of Insurance stated m Schedule A and the amount expended for the ~mprovement
The provisions of this paragraph shall not apply to costs attorneys lees and expenses tot whmh the Company ~s I~able under th~s polmy and shall ot~ly apply to that portion of any
Iosswhlchexceeds n the aggregate 10percentoftheAmountoflnsura~cestated~nScheduleA
(c) The Company will pay only ~hcse costs attorney~ ee~ aed expenses incurred in accordance with Sechon 4 of these Conditions and Shpulahons
8 APPORTIONMENT
g the land described In Schedule A consists of two or more parcels that are lot used as a single site and a loss ~S established affecting one or more of the parcels but not all the
loss shall be computed and settled on a pro rata bas~s as if the amount of insurance under this policy was divided pro rata as to the value on Date of Policy of each separate
parcel to the whole exclusive of any improvements made subsequent to Date of Policy unless a I~edlhty or value has otheP, vlse been agreed upon as to each parcel by the
Company and the idsured at the gms of the ,ssuance of this policy and shown by an express statement or by an endorsement attached 1o this po[icy
9 LIMITATION OF LIABILITY
(a) If the Company estedllshes the title or remo~e~ the alleged defect lien or encumbrance or cures the lack of a nght of access to or from the land ali as insured or takes
acgoP in accordance with Section 3 or Section 6 in a reasonaby diligent manner by any method ~ncludlng litigation and the completion of any appeals therefrom it shall
have fully performed its obhgahons wlih respect to that matter and shall not be Iledle for any loss or damage caused thereby
(b) In the even~ of any litigation includlnq lldgadOT3 by the Company or with the Company s consent the Company shall have no I~abll~ty for loss or damage until there has been
a goal determination by a court of competent jurlsdlrgon and dlSpOSlhon o[ ali appeals therefrom adverse to the title as insured
(c) The Company shall not be liable for loss or damage to a~ y nsured for hdblllty voluntarily ~ssumed by IhS insured in seltlmg any claim or suit without the poor written consen[
of the Company
10 REDUCTIONOI~INSDRANCE REDUCTtON OR TERMINATION OF LIABILITY
All payments under this poltcy except payments made for costs attorneys fees a~d expenses shall reduce the amount of the insurance pre tanto
(Congnued on Reverse Side of Page)
~-z
CONDITIONS AND eTIPULATIONB ConEnued
11 LIABILITY NONCUMULATIVE
It la expra~My understood ~het the amount of insurance under this policy shall be reduced by any amount the Company may pay under ony pelldy thaurlng a mortgage to which
exception Is taken In Schedule B or to which the insured has agreed assumed or taken subject or which ia hereafter executed by en insured and which lda charge or lien on
the estate or Interest heecnbed or referred to in Schedule A and the amount so paid shall be deemed a payment under this policy to the insured owner
12 PAYMENT OF LOSS
(a) No payment shell be made without producing this policy for endorsement of the payment unless the pctlcy has been Ioct or deslreyed in which case proof of Io~a or
destruction shall be furnished to the satisfaction of the Company
(b} Wbenitsb#ityandtheextent~f~ss~rdemegehasbeendefinrieiyhxedinacc~rdancew~ththeceC~nd~ti~n~andS~pu~atldn~ thelossordemegesbellbepayedtswlthln30
days thereafter
13 SUBROGATION UPON PAYMENT OR SETTLEMENT
(a) The Company a Right of Subrogedon
Whenever the Company shall have sewed and paid a claim under th~s policy all right of subrogation shall vest m the Company unalfected by any act of the insured ctalmant
The Company shell be subregtaed to and be ent~ttsd to ctl nghta and remedies that the insured claimant would have had against any person or property in respect to the
claim had th~e pohcy nof been issued If requested by the Company the insured claimant shall transfer to the Company all rights and remedies egalnct any person or property
necessary in order to perfect th~s nght of subrogation The insured claimant shall permit the Company to sue compromise or settle in the name of the insured claimant and to
uae Ihs name of the insured ctsimact in any transection or litigation Involving these dghts or remedies
If a payment on account of a ctaim does not fully cover the loss of the insured claimant the Company shall be subrogatad to these rights end remedies in the proportion
that the Company s payment bears to the whole amount of the loss
If ldss should result Irom any act of the insured claimant as stated above that act shall not void Ihla policy bat the Company in that event, shelJ be redulred to pay only
that part of any losses insured against by this policy that shall exceed the amount if any lost to the Company by reason of the impairment by the insured claimant of the
Company e right of subrogahon
(b) The Company a Rights Against Non Insured Obligor.
The Companya nght of eubregahon against non msered obhgore shall ex,st and shall include without limitation the nghte of the insured to Indemnl~es guarenffec other
polk~les of insurance or bonds notw~thsthnd~ng any terms or condri~ons contained m those instruments that previbe for subrogation rights by reason of this behcy
14 ARBITRATION
Unlaa~ prohibited by aophcable law or untsss this arbthation section ~e deleted by ebecrilc provision in Schedule B of this policy either the company or the insured may demand
arbitration pursuant to the Title Insurance Arb~tretldn Rules of the American Arbitration As~ociatldn Arbitrable matters may include but are not limited to any controversy or claim
between the Company and the tnsured arising out of or retshng to this policy any sen/Ice of the Company in connection with Its Issuance or the breach of a policy provision or other
obligation All arbltrabts matters when the Amount of Insurance ~s $1 000 000 or ~ess SHALL BE arbitrated at the reduesl of eltber the Company or the Insured unless the insured
la an individual person (as d~slmguished from a corporation trust partnemh~p essoctshon or other legal entity) All arbitrable matters when the Amount of Insurance ~s in exce~ of
$1 000 000 shall be arbitrated only when agreed to by both the Company and the Insured Arbitration pursuant to this policy and under the Rules in effect on the date the demand
for arbitration is made or at the ophon of the insured the Rules in oftact at Date of Pohcy shall pa binding upon the berffas The award may Include attorneys fees only if the laws
of the state In which the land ~s Iocatsd permit a court to award attorneys fees to a prevailing party Judgment upon the award rendered by Ihs Arbffratar(a) may be antered in any
court having junsdlct~on thereof
The law of the situs of the land shall apply to an arbitration under the Tnle Insurance Arbdratldn Rules
A copy of the Rules may be obtained lrom the Company upon request
15 MABIUTY LIMITED TO THIS POLICY POLICY ENTIRE CONTRACT
(a) This policy together with all endorsements d any attached hereto by the Company is the entire policy and contract between the insured and the Company In ~ntsrpretlng any
provision of this pohcy this policy shall be construed as a whole
(b) Any claim of loss or damage whether or not based on neghgence and wthch anse Out of the statue of the title to the estate or Interest covered hereby or by any
a~ertldg such claim shall be restnctad to th~e pohcy
(c) No amendment of or endorsement to th~s pohcy can be made except by a wrihng endorsed hereon ct attached hereto signed by either the President a V~ce Preaibent the
Secretary and Ass~stsct Secretary or valldetlng officer or authonzed signatory of the Company
16 SEVERABIUTY
in the event any prows~on of the pctlcy ~s held invalid or unenforceable under apphcable law the policy shall be deemed not to ~nctude that proyiaion and all other provisions abell
COMPLAINT NOTICE
~hould any all"flute arise"flout your premium or about a claim that you have filed, contact the agent or write to the Company that laaued the policy If the pfob!~m II
net re~olved, you sion may write the Texas Department of Inauranco, P O Box 149091, Au"fin, TX 78714~091, Fax No (ELS) 476-t Y71 This notice of complaint pmeedum la